OXIS INTERNATIONAL INC. COMMON STOCK PURCHASE WARRANT
Exhibit
10.2
NEITHER
THIS WARRANT NOR THE SECURITIES ISSUABLE UPON EXERCISE HEREOF HAVE BEEN
REGISTERED WITH THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION OR THE
SECURITIES COMMISSION OF ANY STATE, OR UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “ACT”). THIS WARRANT IS RESTRICTED AND MAY NOT BE OFFERED, RESOLD,
PLEDGED OR TRANSFERRED EXCEPT AS PERMITTED UNDER THE ACT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR AN EXEMPTION FROM SUCH REGISTRATION
REQUIREMENTS.
OXIS
INTERNATIONAL INC., a Delaware corporation (the “Company”), hereby certifies
that, for value received, Xxxxx Capital Inc., a Texas corporation, the holder
hereof (the “Holder”), is entitled, subject to the terms set forth below, to
purchase from the Company at any time or from time to time before 5:00 P.M.
New
York time, on the Expiry Date, fully paid and nonassessable shares of the
Company’s U.S. $.001 par value per share common stock (the “Common Stock”). The
purchase price per share (the “Purchase Price”) shall (subject to adjustment
pursuant to the terms hereof) be, in the event of a purchase at any time during
the period commencing on the date hereof and ending on the Expiry Date, $0.35.
The number of shares of Common Stock and the amount of the Purchase Price are
subject to adjustment as provided herein. This Common Stock Purchase Warrant
(this “Warrant”) may not be redeemed by the Company.
This
Warrant evidences the right to purchase an aggregate of 1,158,857 shares of
Common Stock, subject to adjustment as provided in this Warrant.
As
used
herein, the following terms, unless the context otherwise requires, have the
following respective meanings:
(a) The
term
“Company” includes any entity which shall succeed to or assume the obligations
of the Company hereunder.
(b)
The
term
“Expiry Date” means June 1, 2014. Notwithstanding, as of June 1, 2014 if the
Company is not in compliance with all of its obligations under the Registration
Rights Agreement (as defined below) between Holder and Company, , or any of
its
obligations under this Warrant, then the Expiry Date will be extended to the
date which is two years after the date of full compliance with all its
obligations under both this Warrant and the Registration Rights Agreement,
including but not limited to complying with and effecting all of Holder’s Demand
Registration rights (as defined in the Registration Rights Agreement).
(c) The
term
“Other Securities” refers to any stock (other than Common Stock) and other
securities of the Company or any other person (corporate or otherwise) which
the
Holder at any time shall be entitled to receive, or shall have received, upon
the exercise of this Warrant, in lieu of or in addition to Common Stock, or
which at any time shall be issuable or shall have been issued in exchange for
or
in replacement of Common Stock or Other Securities pursuant to Section 6 or
otherwise.
(d) The
term
“Registration Rights Agreement” refers to a registration rights agreement
covering the Common Stock which may be acquired by Holder upon exercise of
this
Warrant, which agreement is intended to be executed by Company and Holder as
soon as practicable after the issuance of this Warrant, and which will have
the
same effective date as this Warrant. Company and Holder have been negotiating,
and agree to continue to negotiate in good faith and attempt to execute such
Registration Rights Agreement, and agree that it will contain customary terms
and conditions for a registration rights agreement, including but not limited
to
the granting to Holder of piggy-back registration rights beginning on the
effective date of the Registration Rights Agreement and demand registration
rights beginning on the first anniversary of the effective date of the
Registration Rights Agreement.
(e) The
term
“SEC,” “Securities and Exchange Commission” or “Commission” refers to the
Securities and Exchange Commission or any other federal agency then
administering the Securities Act.
(f) The
term
“Shares” means the Common Stock issued or issuable upon exercise of this
Warrant.
(g) The
term
“Securities Act” means the Securities Act of 1933, as amended, or any successor
federal statute, and the rules and regulations of the Securities and Exchange
Commission thereunder, all as the same shall be in effect at the
time.
(h) The
term
“Securities Exchange Act” means the Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Securities and Exchange Commission thereunder, all as the same shall be in
effect at the time.
1. Restricted
Stock.
1.1
Restrictive
Legend.
The
certificates evidencing the Shares issuable upon any exercise of this Warrant
shall, unless such Shares have been registered under the Securities Act, be
unregistered securities and shall bear a restrictive legend similar to the
legend on the first page of this Warrant.
1.2
Commission
Filings.
(a)
The
Company shall at all times keep adequate “current public information” available
under, and otherwise comply with the requirements of, Rule 144 promulgated
under
the Securities Act.
(b)
The
Company shall file with the Commission in a timely manner all required reports
and other documents as the Commission may prescribe under Section 13(a) or
15(d)
of the Securities Exchange Act.
(c)
The
Company shall furnish to the Holder forthwith upon request, (i) a written
statement by the Company as to its compliance with the reporting requirements
under the Securities Act and of the reporting requirements of the Securities
Exchange Act, (ii) a copy of the most recent annual or quarterly report of
the
Company, (iii) any other reports and documents necessary to satisfy the
information-furnishing condition to offers and sales under Rule 144A under
the
Securities Act, and (iv) such other reports and documents as the Holder
reasonably requests to avail itself of any rule or regulation of the Commission
allowing the Holder to sell any such securities without
registration.
2. Exercise
of Warrant.
2.1 Exercise
in Full.
The
Holder may exercise this Warrant in full by surrendering this Warrant, with
the
form of Notice of Exercise attached hereto as Attachment A duly executed by
the
Holder, to the Company at its principal office. The surrendered Warrant shall
be
accompanied by payment in the amount obtained by multiplying the number of
Shares which may be purchased pursuant to this Warrant, by the then applicable
Purchase Price.
2.2 Partial
Exercises.
The
Holder may exercise this Warrant in part (one or more times) by surrendering
this Warrant and a completed Notice of Exercise in the manner and at the place
provided in Subsection 2.1 except that the number of Shares obtained through
a
partial exercise shall be the number of Shares as shall be designated by the
Holder in the Notice of Exercise. The surrendered Warrant shall be accompanied
by payment in an amount equal to (a) the number of Shares as shall be designated
by the Holder in the Notice of Exercise multiplied
by
(b) the
then applicable Purchase Price. After each such partial exercise, the Company
at
its expense will forthwith issue and deliver to the Holder a new Warrant of
like
tenor, in the name of the Holder, pursuant to which the Holder may thereafter
purchase a number of Shares equal to the aggregate number of Shares which could
have been purchased pursuant to a full exercise of the Warrant immediately
prior
to the most recent partial exercise, less
the
number of such Shares purchased pursuant to the most recent partial
exercise.
2.3 Company
Acknowledgment.
The
Company will, at the time of any exercise, exchange or transfer of this Warrant,
upon the request of the Holder, acknowledge in writing its continuing obligation
to afford to the Holder any rights (including, without limitation, any right
to
registration of the Shares) to which the Holder shall continue to be entitled
after such exercise or exchange in accordance with the provisions of this
Warrant. If the Holder shall fail to make any such request, such failure shall
not affect the continuing obligation of the Company to afford to the Holder
any
such rights.
2.4 Payment.
(a)
Upon
any exercise of this Warrant, in full or in part, Holder may, in lieu of paying
cash, elect a cashless exercise through the surrender of certain Shares that
would otherwise be acquired upon such exercise (using a valuation per Share
for
such purpose equal to the closing sales price, or the closing bid price if
no
sales occurred, on the business day immediately preceding such exercise), all
as
more fully illustrated in Section 2.4(b).
(b)
To
illustrate the application of Section 2.4(a), assume the following (all
assumptions are for illustration purposes only): Purchase Price remains at
$.35.
The closing per share sales price on the business day immediately preceding
the
exercise, is $.85. There is a net unrealized gain of $579,428.50 (based on
1,158,857 shares times the $.50 per share difference between the immediately
preceding closing price and the Purchase Price). Holder wishes to exercise
this
Warrant in full. Holder may either (i) Pay $405,600 cash and receive 1,158,857
Shares or (ii) elect a cashless exercise, by paying no cash and receiving that
number of Shares which has a value equal to the net unrealized gain, which
in
this example is 681,681 shares (valued at $.85 per share), whereupon in either
case this Warrant would be deemed fully exercised.
3. Delivery
of Stock Certificates, Etc., on Exercise.
As soon
as practicable after the exercise of this Warrant, in full or in part, (a)
the
Holder hereof shall be deemed to be the record owner of the number of fully
paid
and non-assessable Shares to which the Holder shall be entitled upon such
exercise and (b) in any event within ten (10) business days thereafter, the
Company, at its expense (including the payment by it of any applicable issue
taxes), will cause to be issued in the name of and delivered to the Holder,
a
certificate or certificates for the number of fully paid and nonassessable
Shares to which the Holder shall be entitled on such exercise. No fractional
Share or scrip representing a fraction of a Share will be issued on exercise,
but the number of Shares issuable shall be rounded up to the nearest whole
Share.
4. Adjustment
for Reorganization, Consolidation, Merger, Etc.
4.1
Merger,
Etc.
If the
Company shall (a) consolidate with or merge into any other person, or (b)
transfer all or substantially all of its properties or assets to any other
person under any plan or arrangement contemplating the dissolution of the
Company (any such transaction being hereinafter sometimes referred to as a
“Reorganization”) then, in each such case, the Holder, on the exercise hereof as
provided in Section 2, at any time after the consummation or effective date
of
such Reorganization (the “Effective Date”), shall receive, in lieu of the Shares
issuable on such exercise prior to such consummation or such Effective Date,
the
stock and Other Securities and other property (including cash) to which the
Holder would have been entitled upon such consummation or in connection with
such dissolution, as the case may be, if the Holder had so exercised this
Warrant, immediately prior thereto. The successor entity in any such
Reorganization, where the Company will not be the surviving entity (the
“Acquiring Company”), must agree prior to such Reorganization in a writing
satisfactory in form and substance to the Holder that this Warrant shall
continue in full force and effect and the terms hereof shall be applicable
to
the shares of stock and Other Securities and other property receivable on
exercise after the consummation of such Reorganization, and shall be binding
upon the issuer of any such stock or Other Securities (including, in the case
of
any transfer of properties or assets referred to above, the person acquiring
all
or substantially all of the properties or assets of the Company). If the
Acquiring Company has not so agreed to continue this Warrant, then the Company
shall give 30 days' prior written notice to the Holder of such Reorganization,
during which 30-day period (the “Notice Period”) the Holder at the Holder's
option and upon written notice to the Company shall be able to (i) exercise
this
Warrant or any part thereof at an exercise price (the “Discounted Exercise
Price”) equal to the then prevailing Purchase Price hereunder discounted at the
Discount Rate (as used herein the “Discount Rate” shall mean the then prevailing
interest rate on U.S. Treasury Notes issued on (or immediately prior to) the
date of such 30-day notice and maturing on the Expiry Date (or immediately
prior
thereto), such rate to be compounded annually through the Expiry Date, and
in no
event to be less than 10% annually); or (ii) on the Effective Date, the Holder
shall be paid an amount (the “Merger Profit Amount”) equal to the difference
between the fair market value per share of Common Stock being purchased by
the
Acquiring Company in the Reorganization and the Discounted Exercise Price
described in clause (i) above, and the Warrant shall thereafter expire. The
Merger Profit Amount shall be payable in cash. The fair market value of any
noncash property received from the Acquiring Company upon the Reorganization
shall be determined in good faith by the Board of Directors of the Company
relying upon a good faith independent appraisal of such noncash
property.
4.2
Dissolution.
In the
event of any dissolution of the Company following the transfer of all or
substantially all of its properties or assets, the Company, prior to such
dissolution, shall at its expense deliver or cause to be delivered the stock
and
Other Securities and other property (including cash, where applicable)
receivable by the Holder after the effective date of such dissolution pursuant
to this Section 4 to a bank or trust company having its principal office in
New
York, New York, as trustee for the Holder.
4.3
Continuation
of Terms.
Except
as otherwise expressly provided in Subsection 4.1, upon any reorganization,
consolidation, merger or transfer (and any dissolution following any transfer)
referred to in this Section 4, this Warrant shall continue in full force and
effect and the terms hereof shall be applicable to the shares of stock and
Other
Securities and other property receivable on the exercise of this Warrant after
the consummation of such reorganization, consolidation or merger or the
effective date of dissolution following any such transfer, as the case may
be,
and shall be binding upon the issuer of any such stock or Other Securities,
including, in the case of any such transfer, the person acquiring all or
substantially all of the properties or assets of the Company, whether or not
such person shall have expressly assumed the terms of this Warrant as provided
in Section 4.1.
5. No
Impairment.
The
Company will not, by amendment of its certificate of incorporation or through
any reorganization, transfer of assets, consolidation, merger, dissolution,
issue or sale of securities or any other voluntary action, avoid or seek to
avoid the observance or performance of any of the terms of this Warrant, but
will, at all times, in good faith, assist in the carrying out of all such terms
and in the taking of all such action as may be necessary or appropriate in
order
to protect the rights of the Holder against dilution or other impairment.
Without limiting the generality of the foregoing, the Company covenants that
it
(a) will not increase the par value of any shares of stock receivable on the
exercise of this Warrant and (b) will at all times reserve and keep available
out of its authorized capital stock, solely for the purpose of issue upon
exercise of this Warrant as herein provided, such number of shares of Common
Stock as shall then be issuable upon exercise of this Warrant in full, taking
into account the full application of the anti-dilution provisions, and shall
take all such action as may be necessary or appropriate in order that all shares
of Common Stock that shall be so issuable shall be duly and validly issued
and
fully paid and nonassessable and free from all taxes, liens and charges with
respect to the issue thereof.
6.
Anti-Dilution
Provisions.
(a)
In
the
event the Company shall pay a share dividend or other distribution payable
in
shares of Common Stock, the Purchase Price in effect immediately prior (and
each
Purchase Price in effect subsequent) to such dividend or distribution shall,
concurrently with the effectiveness of such dividend or distribution, be
proportionately adjusted. Specifically, in the case of a share dividend or
other
distribution payable in shares of Common Stock such adjustment shall occur
as
follows: the Purchase Price that is then in effect (and in effect at any time
thereafter) shall be decreased as of the time of such issuance, or in the event
a record date is fixed, as of the close of business on such record date, by
multiplying the Purchase Price then (and therefore) in effect by a fraction
(1)
the numerator of which is the total number of shares of issued Common Stock
immediately prior to the time of such issuance or the close of business on
such
record date, as the case may be, and (2) the denominator of which is the
aggregate of (A) the number of shares of issued Common Stock immediately prior
to the time of such issuance or the close of business on such record date
plus
(B) the
number of shares of Common Stock to be issued in payment of such dividend or
distribution.
(b)
In
the
event the issued shares of Common Stock shall be subdivided, combined or
consolidated, by reclassification or otherwise, into a greater or lesser number
of shares of Common Stock, the number of Shares which may be purchased pursuant
to this Warrant and the Purchase Price shall be proportionately adjusted, in
accordance with the example in Section 6(d).
(c) If
the
Company shall, after the date of issuance of this Warrant, (i) issue any Common
Stock or Common Stock Equivalents for a consideration per share less than the
Purchase Price in effect immediately prior to the issuance of such Common Stock
or Common Stock Equivalent, or (ii) amend any outstanding Common Stock
Equivalent such that Common Stock is issuable thereunder (whether or not
actually issued) for a consideration per share less than the Purchase Price
in
effect immediately prior to the amendment of such Common Stock Equivalent,
then
in either case the Purchase Price in effect immediately after each such issuance
or amendment shall forthwith be adjusted downward (but never upward) to a price
equal to the price per share (net of selling expenses) received by the Company
for such Common Stock or Common Stock Equivalents. For purposes of this Section
6(c):
(i)
“Common Stock Equivalents” are defined to include options or warrants to
purchase or rights to subscribe for Common Stock, securities by their terms
convertible into or exchangeable for Common Stock, and options to purchase
or
rights to subscribe for such convertible or exchangeable securities, provided
however, that the term Common Stock Equivalents excludes the first 2,300,000
common stock purchase options granted by the Company to directors or employees
of the Company after the effective date of this Warrant. The term “2,300,000
common stock purchase options” in the previous sentence will be construed on the
basis of the following: (1) each such option can convey to the holder the right
to purchase no more than one share of Common Stock and (2) the 2,300,000 figure
will be adjusted proportionately hereafter for any events described in Sections
6(a) and 6(b) hereof (in accordance with the example in Section 6(d)).
(ii)
In
the case of the issuance of Common Stock Equivalents, the aggregate maximum
number of shares of Common Stock deliverable upon exercise or conversion of
such
Common Stock Equivalents shall for all purposes be deemed to have been issued
at
the time such Common Stock Equivalents were issued (or, as applicable, at any
time they are subsequently amended), and for a consideration equal to the
consideration, if any, received by the Company upon the issuance (or amendment)
of such Common Stock Equivalents plus the minimum additional consideration,
if
any, to be received by the Company upon exercise or conversion thereof into
Common Stock.
(iii)
Upon the final expiration of any such Common Stock Equivalents, the Purchase
Price (as to any Shares remaining available for purchase under this Warrant)
to
the extent in any way affected by the issuance of such Common Stock Equivalents
shall be recomputed to reflect the issuance of only the shares of Common Stock
actually issued upon the exercise or conversion of such Common Stock Equivalents
for the price per share (net of selling expenses) actually received by the
Company.
(iv)
No
adjustment shall be made for the actual issuance of Common Stock upon the
exercise or conversion of any Common Stock Equivalents, to the extent that
adjustments were already made in connection with the issuance or amendment
of
Common Stock Equivalents which gave rise to the ultimate issuance of such Common
Stock.
(d)
Notwithstanding
anything else to the contrary contained in this Warrant, each time that an
adjustment is required to be made to the Purchase Price, proportionate
adjustments will also be made to the number of Shares which may be purchased
pursuant to this Warrant, so that (I) and (II) are equal, whereby (I) equals
the
total proceeds payable to the Company upon exercise in full of this Warrant
immediately prior to such adjustment to the Purchase Price, and (II) equals
the
total proceeds payable to the Company upon exercise in full of this Warrant
immediately after such adjustment to the Purchase Price. As an example of how
the provisions of this Section 6 shall be applied, assume that the number of
Shares which may be purchased upon exercise of this Warrant at a point in time
is 2,000,000 Shares, and that at such point in time, the Purchase Price is
$0.20, such that an exercise in full of this Warrant would yield proceeds to
the
Company of $400,000. Assume further that the Company effects a two-for-one
stock
split, which results in the Purchase Price being adjusted to $.10. Upon the
effective date of such two-for-one stock split, the number of Shares which
may
be purchased upon exercise of this Warrant will be adjusted to be 4,000,000
Shares so that an exercise in full of this Warrant would still yield proceeds
to
the Company of $400,000. Upon the occurrence of each adjustment pursuant to
this
Section 6, the Company shall prepare, and promptly provide to the Holder, a
certificate setting forth such adjustment and showing in detail the facts upon
which such adjustment is based.
(e)
In
the
event the Company shall pay a dividend or other distribution in cash or noncash
property (other than shares of Common Stock), the Purchase Price shall be
adjusted downward in an amount equal to the value of such dividend or other
distribution. The fair market value of any noncash property shall be determined
in good faith by the Board of Directors of the Company relying upon a good
faith
independent appraisal of such noncash property.
(f)
Company
and Holder acknowledge that Company and certain of its subsidiaries are, were
or
will be obligated to Holder separately under that certain Renewal and
Modification Promissory Note (the “Renewal Note”) which was issued on or about
the same date as this Warrant was issued. Upon any Event of Default under the
Renewal Note (as defined in the Renewal Note), and regardless of whether this
Warrant and the Renewal Note are owned by the same person at such time, the
Purchase Price will be adjusted downward by 10% on the first day of each and
every month thereafter until all amounts outstanding under the Renewal Note
are
repaid in full.
(g)
There
will be no aggregating of Purchase Price adjustments. Each event which gives
rise to a Purchase Price adjustment will in fact give rise to a separate
Purchase Price adjustment hereunder.
|
(h)
|
In
case at any time after the date of this
Warrant:
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(i)
The
Company shall authorize (or events shall have occurred resulting in) any action
referred to in Section 4 or Section 6 of this Warrant, or
(ii)
The
Company shall authorize (or events shall have occurred resulting in) any action
for which approval of any shareholders of the Company is required,
then
the
Company shall cause to be sent to the Holder as soon as possible but not later
than at least thirty (30) days prior to any relevant record date, a written
notice stating (1) the date on which a record is to be taken, or if a record
is
not to be taken, the date as of which any rights are to be determined or any
other actions are expected to become effective.
| 7. |
Representations
and Warranties; Covenants.
|
7.1 Representations
and Warranties.
The
Company represents and warrants to the Holder as follows:
(a) The
Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware.
(b) The
execution, delivery, and performance of this Warrant by the Company are within
the Company’s corporate powers, have been duly authorized by all necessary
corporate action, and do not contravene (i) the Company’s charter or by-laws or
(ii) any law or any contractual restriction binding on or affecting the Company,
any subsidiary of the Company, or its or their properties.
(c) No
authorization or approval or other action by, and no notice to or filing with,
any governmental authority or regulatory body is required for the due execution,
delivery, and performance by the Company of this Warrant and any other documents
or instruments executed or to be executed by the Company in connection with
this
Warrant.
(d) This
Warrant constitutes the legal, valid, and binding obligation of the Company,
enforceable against the Company in accordance with its terms. Upon any issuance
of Shares hereunder, such Shares will be duly authorized, validly issued, and
fully-paid and non-assessable and free of any preemptive rights. The Company
has, by formal action of its Board of Directors, reserved the maximum number
of
Shares that may be issued upon the full exercise of this Warrant and authorized
the issuance of such Shares upon any exercise of this Warrant.
(e) All
information and other materials concerning the Company or any subsidiary of
the
Company which have been made available to the Holder by, or on behalf of the
Company or any subsidiary of the Company, are complete and correct in all
material respects and do not contain any untrue statement of material fact
or
omit to state a material fact necessary in order to make the statements
contained therein not misleading in light of the circumstances under which
such
statements have been made.
(f) There
is
no action, litigation, investigation, or proceeding pending or, to the knowledge
of the Company, threatened against the Company or any subsidiary of the Company
before any court, arbitrator, or administrative agency which might result in
any
material adverse change in the business, assets, liabilities, or condition
(financial or otherwise) of the Company.
7.2 Covenants.
The
Company covenants and agrees with the Holder that the following will be true
and
correct until the Expiry Date:
(a) The
Company will, and will cause each of its subsidiaries to, comply in all material
respects with all applicable laws, ordinances, rules, regulations, orders and
other requirements of governmental authorities.
(b) The
Company will, and will cause each of its subsidiaries to, maintain and preserve
their existence, rights and privileges, intellectual property, licenses and
franchises and obtain, maintain, and preserve all permits, licenses,
authorizations and approvals that are necessary in the proper conduct of their
business.
(c) The
Company will, and will cause each of its subsidiaries to, keep adequate and
proper records and books of account, in which complete and correct entries
will
be made in accordance with generally accepted accounting principles consistently
applied, reflecting all financial matters and transactions in relation to the
business and activities of the Company and its subsidiaries and
affiliates.
(d) The
Company will file, and will cause each of its subsidiaries to file, on a timely
basis, all federal, state and local tax returns and other reports required
by
applicable law to be filed and all taxes, assessments and other charges imposed
by any governmental authority upon the Company and any subsidiary of the
Company, or any property of the Company or any subsidiary of the Company
(including, without limitation, all federal income and social security taxes
on
employees' wages) and all such taxes, assessments and other charges which become
due and payable shall be paid when due.
(e) The
Company will (i) continue to be a reporting company required to make filings
under the Securities Exchange Act and (ii) timely make all filings required
by
the Securities Exchange Act.
(f) The
Company will (i) not increase the par value per share of the Common Stock and
(ii) promptly take any and all action necessary to always have sufficient
authorized but unissued shares of Common Stock (A) available to comply with
the
terms of this Warrant and (B) reserved for issuance upon exercise in full of
this Warrant.
8. Reporting
Requirements.
The
Company shall provide written notice to the Holder of any “Ineffective Period,”
as defined below, within ten (10) days of the commencement of any Ineffective
Period. The term “Ineffective Period” shall mean any period of time after the
effective date of a Registration Statement prior to the Expiry Date that such
Registration Statement or any supplemental or amended Registration Statement
becomes ineffective or unavailable for use for the sale or resale, as
applicable, of any or all of the Shares for any reason (or in the event the
prospectus included in such Registration Statement is not current and
deliverable).
9. Replacement
of Warrants.
On
receipt of evidence reasonably satisfactory to the Company of the loss, theft,
destruction or mutilation of this Warrant, the Company at its expense will
promptly execute and deliver, in lieu thereof, a new Warrant of like
tenor.
10. Expenses.
The
Company agrees to pay any and all stamp, transfer and other similar taxes
payable or determined to be payable in connection with the execution and
delivery of this Warrant and the issuance of this Warrant or the
Shares.
11. Warrant
Agent.
The
Company may, by written notice to the Holder, appoint an agent, or U.S. Stock
Transfer Corp., for the purpose of issuing Shares on the exercise of this
Warrant.
12. Remedies.
The
Company stipulates that the remedies at law of the Holder, in the event of
any
default or threatened default by the Company in the performance of or compliance
with any of the terms of this Warrant, are not and will not be adequate, and
that such terms may be specifically enforced by a decree for the specific
performance of any agreement contained herein or by an injunction against a
violation of any of the terms hereof or otherwise.
13. Assignment;
Registered.
The
Holder may assign all or a portion of its rights under this Warrant to any
person or entity and the Company shall promptly issue a Warrant of like tenor
(a) to the assignee for the number of Shares such assignee is entitled to
purchase and (b) to the Holder for the number of Shares the Holder remains
entitled to purchase following the assignment. Until this Warrant is transferred
on the books of the Company, the Company may treat the registered holder hereof
as the absolute owner hereof for all purposes, notwithstanding any notice to
the
contrary.
14. Notices,
Etc.
All
notices and other communications from the Company to the Holder shall be mailed
by first class registered or certified mail, postage prepaid, at such address
as
may have been furnished to the Company in writing by the Holder.
15. Miscellaneous.
This
Warrant and any term hereof may be changed, waived, discharged or terminated
only by an instrument in writing signed by the Holder and the Company. This
Warrant shall be construed and enforced in accordance with and governed by
the
internal laws (and not the conflicts laws) of Delaware. The headings in this
Warrant are for purposes of reference only, and shall not limit or otherwise
affect any of the terms hereof. This Warrant is being executed as an instrument
under seal. All nouns and pronouns used herein shall be deemed to refer to
the
masculine, feminine or neuter, as the identity of the person or persons to
whom
reference is made herein may require.
16. Expiration.
The
right to exercise this Warrant shall expire at 5:00 P.M.,
New
York time, on the Expiry Date.
Dated
Effective: June 2, 2006.
By:
/s/
Xxxxxx X. Xxxxxxx
Name:
Xxxxxx X. Xxxxxxx
Title:
President & Chief Executive Officer
ATTACHMENT
A
NOTICE
OF EXERCISE
(To
be
Executed by the Registered Holder in order to Exercise the Warrant)
The
undersigned holder hereby irrevocably elects to purchase _________ shares of
Common Stock of OXIS INTERNATIONAL INC. (the “Company”) pursuant to the Common
Stock Purchase Warrant issued by the Company according to the conditions set
forth in said warrant and as of the date set forth below.*
Date
of
Exercise: ________________________________________
Number
of
Shares be Purchased: __________________________________________
Applicable
Total Purchase Price: __________________________________________
Method
of
exercise (Cash or Cashless): ____________________________________
If
this
is a Cashless exercise, provide detail on an attachment to this Notice, showing
the methodology and results calculated in accordance with Section 2.4 of
Warrant.
Signature:
[Name]
Address:
The
Warrant must accompany this Notice of Exercise.
